Access to Information in Nigeria

In May 2011, the President of Nigeria, Dr. Goodluck Jonathan, signed Nigeria’s Freedom of Information Act (FOIA). [2] Although the Nigerian FOIA is one of the earliest access to information laws in Africa, it has given rise to several issues and these must be squarely addressed if indeed FOIA guarantees access to information under Nigerian Law.

Who must disclose?

Under FOIA, information not included in the exemption list must be proactively disclosed and released, provided that such request is directed at public institutions. Also, requests can be directed to private institutions funded with public funds or directed to private institutions rendering public services. Non-Governmental Organizations and other Incorporated Trustees are also required to make information available when demanded. It appears that many FOIA demands have been specifically targeted at public institutions while leaving out other categories, particularly, religious organizations.

How binding is FOIA on individual Nigerian states?

FOIA was made by the National Assembly. Many scholars have argued that any law made by the National Assembly is binding on the entire Federation and on all component units. Others argue that the Federation and the states have equal jurisdiction over information and thus component states have the right to enact or reject FOIA within their territories. This has been a major reason for the denial of information requests by state governments. To complicate matters, there are different judicial pronouncements on this issue by courts of competent jurisdiction in Nigeria. Anticipated decisions on this matter pending before the Court of Appeal would be able to shed more light on this issue.

What constitutes exempted records?

The Nigerian FOIA provides that certain information is exempted from the categories of information that must be released when demanded. This has been one of the major excuses used in denying requests for information. The pronouncements by the courts in this area have been affirmative and commendable: Where such denial is challenged in court, the institution that has failed to release the information sought must disclose why the information should not be released. Where an applicant is able to show that the public interest in disclosing the information outweighs the harm caused by the release of the information, the court may order such information (even categorized under exempted list [3]) to be released. For example, in Public & Private Development Centre v. Power Holding Company of Nigeria & the Honorable Attorney-General of the Federation, the defendant declined an information request by the plaintiff. In the reason advanced for the denial, the respondent held that the release of such information would breach the confidentiality clause reached with the other party with whom the document being sought to be released was signed. The court then ordered the release of the information as sought by the applicant. [4]

How accessible are the remedies?

Where information requested by an applicant has been denied [5], the law provides that such denial can be challenged in court irrespective of the reasons adduced for the denial [6]. However, securing the services of a legal practitioner can be a luxury in a nation where a majority of citizens live on less than $1/day. Also, there is no provision under the law for remedies in form of cash to an applicant whoserequest has been denied. Therefore, where money has been expended by the applicant to hire the services of legal practitioners, the law does not expressly provide for how such money can be recouped. It is humbly submitted that the fine contemplated in the FOIA should be payable to the applicant who was denied. The Nigerian Civil Right Movement provides legal assistance to some citizens whose FOIA requests have been denied, but they cannot meet the needs of every person.

Conclusion

Certainly, the Nigerian FOIA and efforts by the Nigerian Civil Right Movement, non-governmental organizations, and the media have helped make access to information in Nigeria a reality. However, in line with the recent Lyon Declaration, much still has to be done in making information accessible to all people. Access to information is cardinal towards the post 2015 Sustainable Development Agenda and must be entrenched as a right, particularly in developing nations, as this will help to ensure that the leaders truly run a transparent, accountable, and participatory system of governance.